City of Pueblo v. Froney

Gunter, J. Appellees had verdict and judgment for damages sustained through the death of their infant son, alleged to have been caused by the negligence of appellant. The only error assigned is the refusal of the court to give tendered instruction No. 4. Appellees contend that this assignment cannot be considered ..because .all the instructions given by the court are not before us. Nineteen instructions were given, only two are in the abstract. In such condition of the record as presented by the abstract, — upon which we have the right to rely —we cannot say that the refused instruction was not covered by those given by the court, therefore we cannot rule that the court erred in its refusal to give the instruction tendered. — Court of Appeals Rules 1901, No. 14; Woods v. Chellew, 15 Colo. App. 368, 370, 62 Pac. 230; Dawson v. Coston, 18 Colo. 493, 495, 33 Pac. 189; McQuown v. Cavanaugh, 14 Colo. 188, 190, 23 Pac. 341. Notwithstanding above fatal objection to considering the error assigned, we have resorted to the transcript and find that by given instructions numbers twelve and thirteen the jury was fully and fairly charged upon the question of notice to appellant of the unsafe condition of the stone which caused the death, this being the point sought to be covered by the refused instruction. Judgment affirmed. Affirmed.